Tripura High Court
Shri Sajal Deb vs The State Of Tripura on 23 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 141
Author: Akil Kureshi
Bench: Akil Kureshi, S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.329/2015
Shri Sajal Deb, S/O. Late Kshitendra Deb, resident of Village-Laxmi
Narayan Pur, PO: Gouranga Tilla, PS: Kalyanpur, Khowai, Tripura.
----Petitioner(s)
Versus
1. The State of Tripura, represented by the Secretary to the Government of
Tripura, Department of School Education, Civil Secretariat, Capital
Complex, P.O. Kunjaban, P.S. New Capital Complex, District:-West
Tripura, 799006.
2. Director of School Education, Government of Tripura, Agartala, PO:
Agartala, District:-West Tripura, 799001.
3. State Project Director, Sarba Siksha Abhiyan, Tripura Rajya Mission,
Government of Tripura, P.O. Agartala, District:-West Tripura, 799001.
4. Union of India, represented by Secretary, Ministry of Human Resource
Development, Department of School Education and Literacy, Shastri
Bhavan, Dr. Rajendra Prasad Road, New Delhi, 110001.
-----Respondent(s)
Along with
WP(C) No.212/2016
Sri Manoj Kr. Debbarma, S/O. Sri Budhrai Debbarma, resident of Village-
Tuikarma, PO: North Gokul Nagar, PS:- Mongiakami, District:-Khowai,
799205.
----Petitioner(s)
Versus
1. The State of Tripura, represented by Secretary-cum-Commissioner to the
Department of School Education, Government of Tripura, New Secretariat
Building, P.O. Kunjaban, P.S.-New Capital Complex, Agartala, District:-
West Tripura.
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2. The Secretary-cum-Commissioner, Finance Department, Government of
Tripura, New Secretariat Building, P.O-Kunjaban, P.S-New Capital
Complex, Agartala, District:-West Tripura.
3. The Director of School Education, Government of Tripura, PO:-Agartala,
P.S.:-West Agartala, District:-West Tripura, Agartala.
4. The Director of Elementary Education, Government of Tripura, PO:-
Agartala, P.S.:-West Agartala, District:-West Tripura, Agartala.
5. The Director, Office of the State Project Director, SSA Rajya Mission,
Tripura, Department of School Education, Government of Tripura, Akhaura
Road, Old Secretariat Complex, Agartala, West Tripura.
6. The Union of India, represented by its Secretary, Ministry of Human
Resource Development, Department of School Education and Literacy,
Shastri Bhavan, New Delhi, 110115.
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. Somik Deb, Sr. Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. Raju Datta, Advocate,
Mr. D. Sarkar, Advocate,
Mr. Abir Baran, Advocate.
For Respondent(s) : Mr. S.S. Dey, Advocate General,
Mr. S.M. Chakraborty, Sr. Advocate,
Mr. Bidyut Majumder, Asstt. S.G.,
Mr. Debalay Bhattacharjee, G.A.,
Ms. P. Chakraborty, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Date of hearing and judgment : 23rd February, 2021.
Whether fit for reporting : YES.
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JUDGMENT & ORDER (ORAL)
(Akil Kureshi, C.J.) Right to Education became part of the fundamental rights contained in Part-III of the Constitution when the Constitution was amended by 86th Amendment Act, 2002 on 12.12.2002 by which Article 21A was inserted providing that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may by law determine. This Article thus puts emphasis on not only free but compulsory primary education. To provide for a mechanism to implement this fundamental right, the Union legislature framed the Right to Education Act, 2009 (RTE Act, for short). However, long before the Parliament made these constitutional amendments and legislative enactments, the Supreme Court in case of Mohini Jain (Miss) vrs. State of Karnataka and others reported in (1992) 3 SCC 666 and in case of Unni Krishnan, J.P. and others vrs. State of Andhra Pradesh and others reported in (1993) 1 SCC 645 had recognized the right to education as a fundamental right flowing from right to life and liberty guaranteed under Article 21 of the Constitution. This preamble was necessary because in the present petitions we are examining the vexed issues of the rights of the teachers, who are imparting primary and upper primary education in Government schools and are thus Page 4 of 63 furthering the objective of free and compulsory education; of fair and equitable service conditions.
2. Even before insertion of Article 21-A in the Constitution, there were many provisions which manifested deep interest of the framers of the Constitution in the children of the country, their well-being and upbringing. Article 41 contained in Part-IV of Directive Principles of State Policy provided that the State shall within its limits of economic capacity make effective provisions for securing, besides others, the right to education. Article 45 provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 46 provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. Thus the protection of the vulnerable sections of the society such as, Scheduled Castes and Scheduled Tribes from social injustice and all forms of exploitation has been linked with promoting educational and economic interests of such weaker sections.
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3. It is universally accepted that in the modern society education is perhaps the most important tool for betterment and progress of a person, class or the society as a whole. Without formal education a child will always struggle to face the harsher realities in later stage of the life.
4. In case of Bandhua Mukti Morcha vrs. Union of India and others reported in (1984) 3 SCC 161 it was observed as under:
"10. ................. It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case [(1981) 1 SCC 608], to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State-neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials."Page 6 of 63
5. The Supreme Court in a Constitution Bench judgment in case of Ashoka Kumar Thakur vrs. Union of India and others reported in (2008) 6 SCC 1 was examining the validity of reservation of seats in State- aided educational institutions in favour of students of other backward classes. In this context, Bhandari, J emphasized the importance of education at primary and secondary level in following terms:
"578. To rid ourselves of reservation and its unintended consequences like casteism, we must focus our efforts on strengthening education at the primary and secondary level. Only then will we achieve the casteless/classless society the original Framers envisaged. And only then will there be reason to scrap reservation altogether. In his speeches to Parliament regarding Article 15(4), Prime Minister Nehru could not have been clearer: "After all the whole purpose of the Constitution, as proclaimed in the directive principles is to move towards what I may say a casteless and classless society" ... and in an attempt to achieve an egalitarian society, "... we want to put an end to all those infinite divisions that have arisen in our social life; I am referring to the caste system and other religious divisions, call them by whatever name you like". (emphasis added) (Parliamentary Debates on 13-6-1951 and 29-5-1951 respectively.)"Page 7 of 63
6. In case of Bandhua Mukti Morcha vrs. Union of India and others reported in (1997) 10 SCC 549 the Supreme Court highlighted the importance of child development in following terms:
"4. The child of today cannot develop to be a responsible and productive member of tomorrow‟s society unless an environment which is conducive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society. Children are the greatest gift to humanity. Mankind has the best hold of itself. The parents themselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always provide the potential for human development. If the children are better equipped with a broader human output, the society will feel happy with them. Neglecting the children means loss to the society as a whole. If children are deprived of their childhood -- socially, economically, physically and mentally
-- the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The Founding Fathers of the Constitution, therefore, have emphasised the importance of the role of the child and the need of its best development. Dr Bhimrao Ambedkar, who was far ahead of his time in his wisdom projected these rights in the Directive Page 8 of 63 Principles including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy of the democracy and the rule of law."
7. Even the Government of India realising the importance of education in modern India and the significance of education as an equalizing force in a diverse society with several disadvantaged groups, had initiated the steps for spread of education which would cover the entire population and for such purpose Sarva Shiksha Abhiyan (SSA, for short), literally meaning mission for education for all was undertaken in the year 2004. With the amendment of the Constitution formally giving the status of right to education as a fundamental right followed by the enactment of RTE Act, this mission got further impetus. As we shall see hereafter, broadly under the said scheme, the Government of India would provide funds and other assistance to the State Governments to reinforce existing schools with best of facilities, to open new schools whenever necessary and justified and to engage required number of teachers to meet with the new challenges and a sudden spurt of students who must be admitted in primary schools to fulfill the guarantee of free and compulsory education for children. The scheme also shows a paradigm shift from the merely achieving literacy rate targets to quality education to all with a special focus on students of vulnerable groups such as, Scheduled Castes, Scheduled Tribes, minorities and women. Page 9 of 63
8. These petitions are filed by those who have been engaged as teachers in Government schools under SSA. They have also formed an association of similar teachers and claim to espouse the cause of large number of such similarly situated teachers. They would point out that all these teachers have been engaged by the State Government on contractual basis, their period of engagement ranges from the year 2004 to 2010. They point out that they have been paid fixed amounts by way of remuneration without any attendant service benefits. They are considered as contractual teachers whose contract would be terminated at any time. They are not given pay scales equivalent to government teachers. Their grievance is that after long service, they have been denied several benefits of Government employment. They point out that these teachers perform the same duties and functions, possess the same qualifications and impart education in same schools to the same students as are being done by regular Government teachers. Despite similarities in qualifications, experience and nature of work and duties, the SSA teachers receive only a fraction of emoluments as compared to regular Government teachers with no permanency or other benefits.
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9. Government of India has filed a short reply stating that the entire issue has to be dealt with by the State Government. The State Government has filed multiple replies. We shall take note of contents of such replies later. However, what emerges from such voluminous documents is that according to the Government the petitioners can claim neither regular pay scales nor regularization in service principally for three reasons:
(a) The petitioners are engaged under a scheme framed by the Central government. There are no sanctioned posts on which they can be regularized;
(b) The Government is unable to weigh the financial burden if these teachers are to be regularized or even to be paid salary as per the regular scales. The State Government has voiced an apprehension that such burden would fall entirely on the Government if the scheme were to be withdrawn; and
(c) Many of these teachers are not duly qualified‟ not holding the qualification of Teachers Eligibility Test (TET, for short) pass though the petitioners contend that many of them having passed Diploma in Elementary Education (D.El.Ed. examination) during the time when the National Council for Teachers Education (NCTE, for short), had recognized such certificate equivalent to TET certificate.Page 11 of 63
10. Learned advocates for the petitioners have taken us through relevant documents on record and on the basis of which they have highlighted that:
(i) All the petitioners have been engaged as teachers under SSA scheme many years back. Their engagements were after issuance of public advertisement and interviews conducted by the interview boards constituted by the State Government. Their initial appointment was thus after following due process of law;
(ii) All the petitioners are duly qualified to hold the post of regular teachers in Government schools;
(iii) After more than a decade of rendering service, the petitioners and other similarly situated teachers are still not receiving regular pay scales prescribed for a Government teacher. For want of regularization they are also not given other attendant benefits. Since the petitioners possess the same qualifications, experience and discharge the same nature of duties and functions as a regular Government teacher, depriving them of the benefits of regular pay scales would amount to breach of the principle of equal pay for equal work;
(iv) They have also argued that depriving the teachers imparting education in primary and upper primary Government schools of Page 12 of 63 fair wages and equitable service conditions, would be detrimental to the very purpose of imparting quality education to young children;
(v) They have argued that when the services of such teachers have been utilized for years together, non-sanctioning of the regular posts cannot be a ground for not regularizing them;
(vi) They have pointed out that 90% of the funds for salary to SSA teachers comes from the Central Government. The Central Government has not insisted that such teachers must be engaged on fixed salary basis. In fact, there are documents suggesting that the Central Government favours a regular cadre of SSA teachers which would not be different from the other Government teachers;
(vii) Our attention was also drawn to Section 7 of the RTE Act which pertains to sharing of financial and other responsibilities which envisages that the Central and the State Government would have the concurrent responsibilities for providing funds for carrying out the provisions of the Act and as per sub-section (3) thereof, the Central Government would provide to the State Governments as grants-in-aid of revenues, such percentage of expenditure as it may determine from time to time in consultation with the State Governments. On the basis of this provision they have argued that the State Government cannot cite the reason Page 13 of 63 of insufficient funds for not providing regular pay scales to the teachers. In any case, shortage of funds cannot be a ground for discrimination and for exploitive service conditions;
(viii) They have relied on several judgments reference to which would be made at appropriate stages.
11. The learned Advocate General had opposed the petitions contending that the petitioners were engaged under a scheme on contractual basis. They had accepted such appointments. Equal wages for SSA teachers at par with the Government teachers is not an element of right to education. The State Government merely implements the Central Government scheme. Regularizing services of these teachers would create a financial burden on the State Government which the State exchequer is unable to carry. In any case, these petitioners have no vested right of regularization. In absence of sanctioned posts the Court would not direct regularization of contract employees.
12. In order to resolve these disputes we may peruse the materials on record more minutely. It is undisputed that the petitioners were engaged as teachers on contractual basis. A copy of one such appointment order is at Annexure-1 collectively at page-17 of WP(C) No.329 of 2015. This is an Page 14 of 63 order dated 04.10.2010 of engagement of Sri Sajal Deb as a Contract Teacher (B.Sc. Pure) for upper primary school. The conditions for engagement inter alia are that it will be for a period of one year on fixed monthly salary as per SSA norms. The engagement can be terminated upon expiry of one year from the date of engagement. Such engagement can also be terminated without assigning reasons earlier. However, it is also true that before engagement of the petitioners, the Government had followed the procedure of full public participation of all eligible candidates and such eligible candidates who had applied, were interviewed by the board constituted for such purpose. This data we gather from the copy of the advertisement produced by the petitioners at Annexure-18 (Page-305) in WP(C) No.329 of 2015. This is a notification dated 10.02.2010 inviting applications from the interested candidates for filling up 49 posts of upper primary teachers having qualifications of B.Sc. (Pure Science) on contractual basis. At Annexure-19 (page-306) of the said petition, we find the composition of the interview board under a memo dated 01.08.2009. The interview board consisted of Block Project Coordinator, Headmasters of various nearby schools and Deputy Inspector of Schools of the district and one member from the Welfare Section of the SDM‟s Office, Khowai district. The petitioners thus had passed through the said selection process before Page 15 of 63 they were engaged. In fact, the respondents also have on multiple occasions conceded to the position that the petitioners were recruited after following due process of selection. For example, in an affidavit dated 28.07.2016 filed by Sri Kumar Jamatia, Under Secretary to the Department of Education, Government of Tripura [starting from page-221 of WP(C) No.329 of 2015] it is stated that the petitioners were recruited as contract teachers on monthly fixed remuneration during the period from 2004 to 2010 by observing all recruitment procedures and process.
13. Further, in the affidavit dated 21.01.2016 filed by the same deponent starting from page-147 of the said petition, in paragraph-15 it is stated that:
"15. That, in reply to the statements and/or averments made in paragraphs 6 of the instant writ petition, the answering respondents submits that, the contract teachers of Tripura have been engaged strictly following the recruitment policy, procedure and process adopted by the State Government. As such, they are not treated as separate teaching cadre of the State and salary is paid to them almost at par with the fixed and regular teachers of the State Government. They have been granted all important facilities except some few facilities which are exclusively meant for regular State Govt. employees."Page 16 of 63
14. Similar declarations are made by the respondents in WP(C) No.212 of 2016 also. In an affidavit filed by the State Government starting from page-119, it is stated that petitioners were recruited as contract teachers on monthly fixed remuneration during the period from 2004-2010 by observing all recruitment procedures and process.
15. We may, therefore, proceed on the basis that though all the petitioners were engaged as contract teachers, their initial engagement was after following a proper selection process. We may now examine the background under which these teachers were engaged and the objectives sought to be achieved under SSA.
16. As noted, SSA scheme predated RTE Act. After the statutory framework was provided under RTE Act to implement the guarantee of fundamental right of free and compulsory education to children, the SSA was substantially revamped as can be seen from the publication of Ministry of Human Resource Development, Department of School Education and Literacy which was titled as "Framework for Implementation of Sarva Shiksha Abhiyan", a copy of which was provided by the Advocate General. Chapter-1 of the said document is an introductory chapter which refers to the formation of National Policy on Education by the Government of India. It is Page 17 of 63 recorded that over the years there has been significant expansion of elementary schools in the country and the access and enrollment at the primary stage of education has reached near universal level. However, the dropout of school children particularly belonging to the disadvantaged group of weaker sections still remains very high. This chapter also refers to the insertion of Article 21-A in the Constitution and enactment of RTE Act. It is stated that the compulsory education referred to in Article 21-A casts an obligation on the appropriate Government or the local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the age group of 6 to 14 years. It is further observed:
"With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act."
17. This document aims at revamping SSA framework to achieve goals such as access and universalisation of elementary education. It provides that the changes sought to be made "........are not merely confined to norms for providing teachers or classrooms, but encompass the vision and approach to elementary education as evidenced in the shift to child entitlements and quality elementary education in regular Page 18 of 63 schools." Chapter-2 of this document has a title "All Children in School". In this chapter it is highlighted that "Equity will be seen as an integral part of the agenda on improving quality and will, therefore, encompass not just looking at issues pertaining to teacher training and education, curriculum, language, educational planning and management". The need was felt to focus on special groups as can be seen from the following passage of the said chapter:
"3.3.3 Equity in SSA would, therefore, mean focus on addressing exclusion of girls and children belonging to Scheduled Castes, Scheduled Tribes and Muslim communities who constitute the bulk of excluded children in the country. It will also refer to a new category of excluded children-those living in areas affected by civil strife. It will also take into account, children affected from migration, urban deprived children, homeless children, children in remote and sparsely populated habitations, other groups and categories of excluded children and CWSN. It will also mean including gender and other equity issues within the quality goal."
18. Chapter-4 has a title "Elementary Education of Equitable Quality". In this chapter it is observed as under:
"We want to seed our classrooms as learning centres where:Page 19 of 63
The child Gains confidence in facing problematic situations and undertakes tasks without any hesitation. Interacts freely, meaningfully and joyfully with her classmates, teachers and teaching learning materials. Interacts in groups and makes use of other resources for expanding her knowledge."
19. Para-4.2 of the said chapter enlists quality concerns in elementary education. One of the concerns cited in the said paragraph is as under:
"(v) Work on the core components of curriculum is not accompanied by improvement in the enabling components, which include teacher recruitment and deployment systems, re-orientation of educational administrators, BRC and CRC faculty."
20. Clause 4.4.2.1 of the said chapter pertains to teacher recruitment, placement and training. Relevant portion of this clause reads as under:
"The RTE Act recognizes the importance of providing adequate number of teachers and lays down that the prescribed Pupil Teacher Ratio (PTR) must be maintained for each school. It also recognizes the need for subject specific teachers, head teacher and part time instructors for art, health and work education in upper primary schools. In addition, it stipulates that no school Page 20 of 63 shall have a teacher vacancy of more than 10%. SSA will support States in recruiting adequate number of teachers in the new schools sanctioned under the programme as well as additional teachers to meet the requirements of PTR at school level as per norms."
21. Chapter-9 pertains to planning, appraisal and fund flow mechanisms in which in clause 9.3.4 it is observed that quality and equity would be the overarching theme of planning and plan formulation in the overall perspective of child rights and entitlements.
22. We may now refer to some more documents which form part of the pleadings and which would throw some light on the nature of duties and responsibilities and the purpose of engagement of the petitioners as SSA teachers. In Guidelines for Implementation of Restructuring and Reorganization of the Centrally Sponsored Scheme on Teacher Education [copy at Annexure-3 (page-30) of WP(C) No.329 of 2015], the system of engaging contract teachers was frowned upon and reference was made to sub-section (3) of Section 23 of RTE Act to ensure proper pay conditions of the teachers in order to impart quality education. Comparison was made with other countries regarding pay structures of the teachers in those countries. Following portion of this document may be noted:
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"Contract Teachers 2.12 Recruitment of contract teachers, i.e. teachers whose pay and service conditions are substantially adverse vis-à-vis the regular teachers, has been a matter of great concern and discussion in the recent past. Low salary and insecurity of tenure are features of the system of appointment of contract teachers and are regarded as disincentives for talented persons to join the teaching profession. In Government schools in 2007-08, 14.10% of teachers were contract teachers, their numbers being as high as 49.44% in Jharkhand, 36.89% in Uttar Pradesh, 34.44% in Jammu & Kashmir and 28.82% in Orissa.
2.13 The RTE act (section 23(3)) provides that the salary and service conditions of teachers would be as prescribed by the appropriate Government. Given the anomalies that the system of contract teachers creates in the teaching profession, and thereby on quality of teaching, States would be well advised to prescribe uniform salary and service conditions for teachers, as also take steps to create an environment for (a) attracting the most talented in teaching profession; (b) improving recruitment policies; and (c) exploring possibilities for improving career structures for teachers.
2.14 With regard to attracting the best talent in the teaching profession, international comparisons show interesting results. In South Korea top 5% of the student cohort become teachers, with a starting salary of 141% of Page 22 of 63 the per capita GDP. In respect of Finland and Singapore, these figures are top 10% and top 30% respectively with starting salary of 95% of per capita GDP. Apart from good starting compensation, other factors that contribute to attracting persons in the teaching profession are (i) opportunities to work collaboratively, rather than in isolation; (ii) physical infrastructure, such as accommodation, conducive classroom conditions; (iii) system of rewards and incentives for good performers; (iv) social status in the local community and involvement in key decision making process."
23. In a letter dated 04.03.2013 by the Under Secretary to the Government of India written to the State Project Director of Punjab [copy at Annexure-4 (page-35) of WP(C) No.329 of 2015], it has been clarified that SSA provides support to new teachers in schools sanctioned under SSA and also additional teachers in existing schools based on the enrollment. The support is given to the States for salary at the same scale and service conditions as of the teaching cadre of the State and that there is no separate SSA cadre of teachers. Following portion may be noted:
"SSA provides support for new teachers in schools sanctioned under SSA and also additional teachers in existing schools based on the enrollment. The support to States for additional teachers and teachers' salary is given at the same scale and service conditions as of the teaching Page 23 of 63 cadre of the State. There are no separate SSA scales or norms/rules for teacher recruitment.
It is found that in Punjab a separate "SSA" cadre of contractual teachers has been created for whom different service arrangements have been spelt out and they are posted only in "SSA schools". This is an erroneous phenomenon. All schools receiving SSA funding are schools of the State Government and so are all teachers. SSA is only a programme providing additional funding to the State for elementary education development and reform.
The State is advised to kindly desist from creating any analomous situation on this account."
24. At annexure-6 in the said petition at page-50 the petitioner had produced a letter of the Government of India to the local authorities clarifying that "that under Sarva Shiksha Abhiyan (SSA), funds for salary is provided for regular and contract teachers as informed by the State."
25. The petitioner of WP(C) No.212 of 2016 have produced at Annexure-P/3 Annual Work Plan & Budget of Sarva Shiksha Abhiyan Programme for the year 2010-11 prepared by the State Government in which, in connection with the teachers‟ salary it is stated that the Government has decided to pay regular pay scale to those employees who have completed 5 years service. The existing pay scale of primary teachers Page 24 of 63 is Rs.10,000/- and that of upper primary teachers is Rs.13,000/- per month. It was, therefore, proposed to pay regular pay scales to those teachers at the rates mentioned above. They have also produced the letter dated 26.12.2013 from the Government of India in connection with Annual Work Plan and Budget for SSA for the year 2014-15 at annexure-P/7, page-93 to the petition in which the Government of India for ensuring adequate availability of teachers has recommended that the States should maintain unified teaching cadres and no separate SSA cadre is permissible as all teachers are ultimately to be borne on the States/ UT Governments.
From page-102 onwards (Annexure-12) in WP(C) No.329 of 2015, the petitioners have produced several orders passed by different State Governments regularizing the services of the SSA teachers. These Governments include those of State of Manipur, State of Sikkim, State of Himachal Pradesh etc. Further, these petitioners have produced at Annexure- 14 Minutes of the 198th meeting of the Project Approval Board held on 08.04.2013 for approval of the Annual Work Plan and Budget of State of Uttar Pradesh. They point out that in the State of Uttar Pradesh there were no SSA teachers who are yet to be regularized and that there were no contract teachers in the system.
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26. The respondents have filed multiple replies and, as noted above, strongly opposed the prayers of the petitioners. However, they have not disputed that the petitioners were engaged after following regular selection process in consonance with Articles 14 and 16 of the Constitution. We may at this stage take note of further averments made by the respondents in such affidavits. In an affidavit dated 21.01.2016 starting at page-147 filed by Sri Kumar Jamatia, Deputy Secretary to the Department of School Education, it is stated that:
"The answering respondents submits that, the State Government is, in principle, equally concerned about low salary and insecurity of tenure of engagement of Contract Teachers as contained in the guidelines issued in connection with restricting and reorganizing of centrally sponsored scheme on teacher education. In this regard, it is stated and pointed out that the Contract Teachers were engaged in Tripura under Sarva Shiksha Abhiyan Programme primarily on fixed remuneration basis as per decision of the SSA Rajya Mission, Tripura a Society constituted by the State Government and registered under Societies Registration Act 1860. In this regard, Rule 4(b) and (c) may kindly be referred to as contained Annexure-R-2. Primarily although the Contract Teachers were paid fixed remuneration on a par with the rate of fixed pay teachers of the State Government, that may be considered comparatively poor, but subsequently since 2010 the Contract Teachers completing 5 years continuous service are being paid remuneration almost as per Page 26 of 63 ROP, 2009 and those serving for period of below 5 years are being paid remuneration at rates even higher than fixed pay regular teachers. In respect of service condition of the contract teachers it is stated here that they are now enjoying almost equal financial and other facilities except those like LTC, pension, GPF etc. to which they are not entitled/cannot be granted for not being regularized. In view of above status, the service condition of the contract teachers is not so poor in the State of Tripura. The State Government of Tripura is seriously considering the issue of granting uniform salary and providing equal service condition to the contract teachers."
27. In the same affidavit the deponent has further stated that:
"In Tripura, the State Government is, in principle in favour of regularization of services of all teaching and non-teaching staff of SSA. Since 2010 the State Government is working in the right direction by granting various facilities and financial benefit on a par with the State Govt. Regular Employees, leaving few gaps and discrepancies pending regularization of their services. The State Government is critically contemplating over the issue and will adopt appropriate decision in this regard at the appropriate time."
28. However, the deponent has voiced the apprehension of the State Government of huge financial burden in case the SSA scheme may be withdrawn as can be seen from following portion of the said affidavit: Page 27 of 63
"The State Government is seriously considering the issue of future huge financial liabilities to be borne on account of regularization of their services in the event of cessation of the flagship programme of Sarva Shiksha Abhiyan which may happen at any time, because the programme has already passed long period of 14 years. The State Government is thinking about the future fate of both the teaching and non- teaching staff and not exclusively for teachers."
29. It is further stated that:
"That, in reply to the statements and/or averments made in paragraphs 12 of the instant writ petition, the answering respondents submits that, the State Government is unequivocally in favour of regularization of services of both teaching and non-teaching contractual staff of SSA. The State Government is seriously thinking over the issue and contemplating over future financial liability to be borne in the event of cessation of the programme."
30. Once again in a further affidavit dated 28.07.2016 starting at page-221 the said deponent has stated as under:
"The State Government of Tripura is seriously considering the issue of granting uniform salary and providing equal service condition to the contract teachers.
xxx xxx xxx The State Government is seriously considering the issue of future huge financial liabilities to be borne on account Page 28 of 63 of regularization of their services in the event of cessation of the flagship programme of Sarva Shiksha Abhiyan which may happen at any time, because the programme has already passed long period of 14 years.
xxx xxx xxx In view of the above Teacher Qualification Criteria and condition laid down by NCTE, notwithstanding having sympathy for the contract teachers, it would be very difficult to regularize their service because of the fact that most of them do not possess Academic and Teacher Education Qualification even though most of them were engaged before introduction of RTE Act, 2009.
xxx xxx xxx That, in reply to the contention of paragraph-5 of the rejoinder of the writ petitioner is strongly denied. The writ petitioner was recruited as contract teacher under the Scheme of Central Government namely Sarva Shiksa Abhiyan (SSA). While the writ petitioner was appointed under the Central Government Scheme that should be managed under the guide line of Central Government only. The state Government is only implementing the said Scheme of Education as aforesaid. In any circumstances; or stage if the said scheme as aforesaid is closed or ended the contract service of the petitioner will automatically would be closed or otherwise also terminated in case the criteria is not fulfilled.
xxx xxx xxx Page 29 of 63 The answering respondents further submits that, the State Government of SSA Rajya Mission Tripura does not consider the contract teachers as separate SSA cadre rather they are treated as like as the regular teachers. They are being paid remuneration at par with the regular teachers provided there is adequate budget provision/release of fund by the MHRD, Govt. of India. The contract teachers are being allowed to enjoy leave and other facilities almost as like as regular teachers.
xxx xxx xxx That, the answering respondents in the above factual matrix begs to submit that the SSA teachers under the scheme is contractual although now this State pays them an amount similar to the regular teacher, nevertheless their services are contractual.
Secondly, although qualification for appointment of such contractual teacher are similar to those of regular teacher, the SSA teachers does not have the requirement of TET or Teacher training which are mandatory requirement under the NCTE Regulations.
Thirdly, although the appointment was made by the Inspector of Schools, the selection was made at the village level where the school is situated and it was not an open competition in conformity with Article 14 of the Constitution."
31. From the above voluminous material, what can be culled out is that SSA scheme was framed by the Central Government under which the Page 30 of 63 petitioners were engaged as contractual teachers. Their engagement was preceded by a public advertisement and interview by duly constituted interview board. As noted, in the affidavit dated 21.1.2016 it is admitted that the petitioners and other similar teachers were engaged strictly following the recruitment policy, procedure and process adopted by the State Government. They have been working in such capacity since several years and almost all of them have completed more than 10 years of service. They are still treated as contractual and receive remuneration at fixed pay basis provided by the State Government and revised from time to time. The question, therefore, is do they have a right to regularization? Alternatively, are they justified in claiming salary in the regular pay scales? Both these questions would have many elements to consider. In the process we would also have to examine the opposition of the Government based on three principal grounds noted earlier and which briefly are:
(a) In absence of sanctioned post they cannot be regularized;
(b) Many of the petitioners are not qualified;
(c) Being a Central scheme, in the eventuality of withdrawal
of the scheme, the State Government would be saddled with the burden it has neither agreed to nor able to carry.Page 31 of 63
32. As noted, one of the earliest judgments on the issue of right to education can be traced to Mohini Jain(supra) in which in the context of examining the legality of the educational institutions charging capitation fee in consideration of granting admission, the Supreme Court had observed that, no doubt right to education as such has not been guaranteed as a fundamental right under Part-III of the Constitution but reading the provisions of Articles 21, 28, 39, 41 and 45 cumulatively it becomes clear that the framers of the Constitution made it obligatory to the State to provide education for its citizens. Referring to the decision of Supreme Court in case of Bandhua Mukti Morcha vrs. Union of India and others reported in (1984) 3 SCC 161 it was further observed as under:
"12. "Right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
xxx xxx xxx
14. The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to Page 32 of 63 provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society."
33. The said judgment in case of Mohini Jain (supra) came up for consideration before a larger Bench in case of Unni Krishnan (supra). The view of the Court in case of Mohini Jain (supra) that right to education flows directly from right to life was approved. We are conscious that the decision in case of Unni Krishnan (supra) on other aspects was not approved in later larger Bench judgments of the Supreme Court starting from the decision in case of T.M.A. Pai Foundation and others vrs. State of Karnataka and others reported in (2002) 8 SCC 481 which was later on expanded and explained in case of Islamic Academy of Education and another vrs. State of Karnataka and others reported in (2003) 6 SCC 697 and P.A. Inamdar and others vrs. State of Maharashtra and others reported in (2005) 6 SCC 537. This is only to demonstrate that long before insertion of Article 21-A in the Constitution, the Supreme Court of India had already recognized right to education as a fundamental right being part of right to life under Article 21.
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34. In case of Ashoka Kumar Thakur (supra), Bhandari, J emphasized the importance of right to education under Article 21-A by making following observations:
"369. The first place where caste can be eradicated is the classroom. It all starts with education. In other words, if you belong to a lower caste but are well qualified, hardly anyone would care about your caste. Free and compulsory education is now a fundamental right under Article 21-A. The State is duty-bound to implement this article on a priority basis. There has been grave laxity in its implementation. This laxity adversely affects almost every walk of life. In my opinion, nothing is more important for the Union of India than to implement this critical article.
xxx xxx xxx
371. The Union of India should appreciate in proper perspective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. If we want to really help the socially, educationally and economically backward classes, we need to earnestly focus on implementing Article 21-A. We must provide educational opportunity from day one. Only then will the casteless/classless society be within our grasp.Page 34 of 63
xxx xxx xxx
490. The article seeks to usher in "the ultimate goal of providing universal and quality education". (emphasis supplied) Implied within "education" is the idea that it will be quality in nature. Current performance indicates that much improvement needs to be made before we qualify "education"
with "quality". Of course, for children who are out of school, even the best education would be irrelevant. It goes without saying that all children aged six to fourteen must attend school and education must be quality in nature. Only upon accomplishing both of these goals, can we say that we have achieved total compliance with Article 21-A. xxx xxx xxx
2. Can the fundamental right under Article 21-A be accomplished without great emphasis on primary education?
634. No, it cannot. An inversion in priorities between higher and primary/secondary education would make compliance with Article 21-A extremely difficult. It is not suggested that higher education needs no encouragement or that higher education should not receive more funds, but there has to be much greater emphasis on primary education. Our priorities have to be changed. Nothing is really more important than to ensure total compliance with Article 21-A. Total compliance means good quality education is imparted and all children aged six to fourteen regularly attend schools."
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35. With insertion of Article 21A in the Constitution, thus, this concept of the duty of the State to provide free and compulsory education to all children of the age of 6 to 14 years got crystallized. Emphasis in this provision thus is on the obligation of the State to provide free and compulsory education. The onus is on the State to ensure that the education is provided not only free of charge to those who cannot afford it, but that is made compulsory for all children between the age of 6 to 14 to undertake such education. The entire concept thus that emerges from such evolution of the right to education is a right based approach. On one hand this principle accepts the right of a child to education and on the other hand imposes a corresponding duty on the State to provide necessary facilities for availing the right. It is in this context, the term "compulsory" assumes significance.
36. To operationalize this right of free and compulsory education for all children, the legislature framed the RTE Act. The statement of objects and reasons for framing of the Act provides that crucial role of the universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Act was enacted to provide inter alia, Page 36 of 63
(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;
(b) „compulsory education‟ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;
(c) „free education‟ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
With these objects in mind, the Act was enacted. Section 3 of the Act declares that every child of the age of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of free and elementary education. Sub-section (2) of Section 3 provides that for the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. Section 3 of the Act thus expands this right of a child to a free and compulsory education to the level where he would be admitted in a neighbourhood school and for Page 37 of 63 such purpose no child will be liable to pay any kind of fee, charges or expenses which may prevent him or her from pursuing or completing the elementary education.
37. Chapter-III of the Act pertains to duties of appropriate Government, local authorities and parents. Section 6 contained in the said chapter envisages establishment of neighbourhood schools by the Governments or the local authority. Section 7 pertains to sharing of financial and other responsibilities. Sub-section (1) of Section 7 provides that the Central Government and the State Government shall have concurrent responsibility for providing funds for carrying out the provisions of the Act. As per sub-section (2), the Central Government would prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act. Sub-section (3) of Section 7 provides that the Central Government shall provide to the State Governments as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine from time to time in consultation with the State Governments. Under sub-section (4) of Section 7 the Central Government could make a request to the President to make a reference to the Finance Commission to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its Page 38 of 63 share of funds for carrying out the provisions of the Act. Section 8 pertains to duties of appropriate Government which requires that the appropriate Government shall, inter alia, provide free and compulsory elementary education to every child and ensure availability of a neighbourhood school, provide infrastructure including school building, teaching staff and learning equipments and ensure good quality elementary education conforming to the standards and norms specified in the Schedule.
38. Section 23 of the Act pertains to qualifications for appointment and terms and conditions of service of teachers. Sub-section (1) of Section 23 provides for minimum qualifications which may be prescribed for a person to be eligible for appointment as a teacher. Sub-section (2) of Section 23 provides that where a State does not have adequate institutions offering courses or training in teacher education or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may if it deems necessary relax the minimum qualifications required for appointment as a teacher for such period as may be specified. Sub-section (3) of Section 23 provides that the salary and allowances payable to and the terms and conditions of service of teachers shall be such as may be prescribed.
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39. Before we go further we may notice that the provisions noted above, not only refer to providing free and compulsory education, also refer to quality education and which would be the duty and responsibility of the appropriate Government or the local authority, as the case may be. The quality of education is thus inbuilt in a guarantee of free and compulsory education up to the age of 14 years. This guarantee is manifested in number of ways under the RTE Act and is not confined to a mere policy declaration of the legislature. The Act provides for admission of every child in a neighbourhood school. It provides for levying of no fees or charges which would prevent the child from pursuing the education. It provides for creation of sufficient infrastructure including preparing sufficient number of trained teachers for imparting education. It requires that a student admitted should not drop out and also provides that the education to be imparted to such children would be of desired quality.
40. These lofty ideas and concepts echo and find resonance in the SSA framework for implementation, relevant portions of which we have reproduced in the earlier portion of the judgment. As noted, in this document it has been stated that the scheme is not confined simply to norms for providing teachers or classrooms, but encompass the vision and approach to elementary education as evidenced in shift to child entitlements and quality Page 40 of 63 elementary education in regular schools. In chapter-2 of the said document titled as "All Children in School", it is emphasised that equality will be seen as an integral part of the agenda on improving quality and will, therefore, encompass not just looking at issues pertaining to teacher training and education, curriculum, language, educational planning and management. Elaborating these aspects, it is further stated that equality in SSA would, therefore, mean focus on addressing exclusion of girls and children belonging to Scheduled Castes, Scheduled Tribes and Muslim communities who constitute the bulk of excluded children in the country. It will also refer to a new category of excluded children-those living in areas affected by civil strife, children affected from migration, urban deprived children, homeless children, children in remote and sparsely populated habitations. It will also mean including gender and other equity issues within the quality goal. This vision document thus emphasises not only free and compulsory education for all children but also focuses on vulnerable groups where dropout rates of a child even though once admitted is extremely high. Contents of this document would show that the special attention is to be given to children belonging to Scheduled Castes, Scheduled Tribes and minority communities as well as girl child. For such purpose, the schools are required to maintain Page 41 of 63 sufficient number of teachers where the vacancy should not exceed 10% of the posts.
41. If these are the concepts flowing from the constitutional amendment, the statutory framework, the vision of the Government of India and the understanding of the right to education by the Courts in various decisions noted above, can it be stated that right to education can be divested from the concept of quality education? The question is rhetorical and the answer obviously is in the negative. One cannot have a right to education without such education being imparted is of desired quality. Mere going through the motions of imparting education does not amount to fulfilling the guarantee of free and compulsory education. The philosophy appears to us is that the quality education should not be a monopoly of children of rich parents. The responsibility of the state to provide quality education is thus embedded in the right to education guaranteed under Article 21-A of the Constitution and is integral part of RTE Act.
42. If that be so, immediate question that would arise is, should the teachers who have a pivotal role to play in imparting such education and fulfilling the nation‟s obligation of free and compulsory education to every child, can be kept on tenterhooks for years together, without proper salary Page 42 of 63 and other service conditions which can guarantee at least a semblance of security? When a teacher employed in such schools has to play an important role not in formal education and in classroom teaching but is also expected to ensure providing proper atmosphere and suitable conditions where students belonging to vulnerable groups such as, Scheduled Castes, Scheduled Tribes, minorities and girl students are not forced to drop out before completing primary education, is it impossible to expect the teacher to perform such a role successfully if his or her own needs and requirements of the most basic level are not satisfied? An unhappy teacher can never perform the task of motivating the child into completing education against all odds. To summarise, quality education is a part and parcel of right to education and a basic quality in education cannot be achieved without satisfying the basic needs of the person who is entrusted with this task.
43. Poor working condition for teachers is an anathema to the principle of quality primary education for all. The vision document of Government of India also takes note of the fact that poor service conditions of teachers is one of the prime causes of poor quality in Government schools. In chapter-2 referring to contract teachers it is noted that recruitment of contract teachers, i.e. teachers whose pay and service conditions are substantially adverse vis-à-vis the regular teachers has been a Page 43 of 63 matter of great concern. Low salary and insecurity of tenure are features of the system of appointment of contract teachers and are regarded as disincentives for talented persons to join the teaching profession. Thereafter, after referring to Section 23(3) of the RTE Act which provides that salary and service conditions of teachers will be as prescribed by the appropriate Government it is observed that, given the anomalies that the system of contract teachers creates in teaching profession, and thereby on quality of teaching, "States would be well advised to prescribe uniform salary and service conditions for teachers, as also take steps to create an environment for (a) attracting the most talented in teaching profession;
(b) improving recruitment policies; and (c) exploring possibilities for improving career structures for teachers." In the said portion thereafter comparison is made with situation in other countries with respect to the Governments spending on education as proportion to its per capita Gross Domestic Product. In order to make a point that insufficient spending by Governments in education is a cause for poor quality of teaching. Further, as noted in a letter dated 04.03.2013 from the Ministry of Human Resource Development, Government of India to the State Project Director, Chandigarh, it is stated that the support to the States for additional teachers (SSA teachers) and teachers‟ salary is thus given at the same scale and Page 44 of 63 service conditions as the teaching cadre of the State. It was pointed out that in the State of Punjab a separate SSA cadre of contractual teachers has been created for whom different service arrangements have been made and they are posted only in SSA schools which was disapproved. If the State wishes to fulfil the constitutional goal of quality and free primary education, it cannot shy away from its responsibility of providing proper service conditions to the teachers who are entrusted with this delicate task.
44. The question has another element namely that of discrimination and breach of the principle of equal pay for equal work. We have noticed that SSA teachers are entrusted with the same educational responsibilities, teaching in the same schools to the same students for the same amount of time as regular Government teachers are. Assuming for the moment that they also hold the requisite and, therefore, same qualifications as their counterparts in the Government, in our opinion, thereafter it is simply not open for the administration to treat the two classes of teachers differently at least when it comes to their remuneration. The principle of equal pay for equal work must kick in. In this context, it is not necessary to refer to long line of judgments of the Supreme Court, suffice to refer to the judgment in case of State of Punjab and others vrs. Jagjit Singh and others reported in Page 45 of 63 (2017) 1 SCC 148 in which after referring to almost all previous judgments on the point, it was observed as under:
"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
45. With this background, we may deal with the three objections of the Government. The first objection was that the petitioners are contractual employees. There are no sanctioned posts on which they can be regularised. In any case, a contractual employee has no right of regularisation. This objection of the Government has two or three elements. Firstly, as an authority empowered to create posts, the state cannot argue before the Court that because the posts are not created, there can be no order for Page 46 of 63 regularisation. Creation of a post of course has the elements of budgetary considerations and expediency, but above all it depends on the perennial nature of the work. If the work is of perennial nature and if the Government also has undertaken the work and not decided to outsource it in a legal manner if so permissible, can the Government turn around and argue 20 years later that because the Government has not sanctioned the post, the person who is discharging the duties for two decades and more, must continue to do so on contractual relations? In case of State of Haryana and others vrs. Piara Singh and others reported in (1992) 4 SCC 118 the Supreme Court had observed that long continuous service gives rise to a presumption about need for a regular post. Such presumption of course would not arise on a mere continuous continuation for a year or so. In the said case, continuation of ad-hoc teachers for couple of years was found sufficient to justify creation of posts. We are conscious that many developments have taken place after the Supreme Court rendered the said judgment in case of Piara Singh (supra). However, the very fundamental concept of long uninterrupted service against the normal regular requirements of the Governmental functions, can always be seen as a strong indicator of the requirement of creation of posts. Even in the Constitution Bench judgment in case of Secretary, State of Karnataka and others vrs. Page 47 of 63 Umadevi (3) and others reported in (2006) 4 SCC 1, the period of 10 years is recognised to be long enough to warrant consideration for regularisation of employees whose initial engagement is irregular but not illegal and who have continued in service without the intervention of the orders of the Courts. In case of Narendra Kumar Tiwari and others vrs. State of Jharkhand and others reported in (2018) 8 SCC 238 the Supreme Court referring to the decision in case of Umadevi (supra), strongly deprecated the action of the State of Jharkhand in continuing irregular appointments for almost a decade after the decision in the case of Umadevi (supra) observing that this was nothing but exploitation of the employees concerned. It was eventually provided that in cases where the employees had completed 10 years of service on the date of promulgation of the rules, they should be regularised. This coupled with the fact that the petitioners are not engaged in a routine clerical work but for the work which is of most important nature, of not only shaping the whole future generation but also fulfilling the obligation of a free and compulsory education. We must draw line where the Government‟s stand that no matter how long the tenure of contractual employment, unless and until the Government formally recognises the need of creation of the posts and sanctions such posts, the incumbent has no right Page 48 of 63 to expect regularisation. This objection of the Government subject to certain safeguards we shall provide hereafter must be rejected.
46. The second objection of the Government was that of budgetary constraints. To a large extent, this is a misnomer. We have perused the terms of SSA scheme as well as correspondence between the Union of India and State Governments including the Government of Tripura. On the basis of such materials what emerges is that expenditure for the teachers under SSA would be borne 90% by the Central Government and only 10% burden falls on the State Government. Further, these SSA teachers are meant to augment the capability of the State Government which would require large number of teachers for fulfilling the obligation of free and compulsory education to every child. The Central Government has nowhere provided that such teachers must be retained on fixed salary basis or they may not be regularised ever. In fact, the Central Government has always shown willingness to make budgetary provisions for the number of teachers engaged by the State Government under SSA, on the basis of the pay structure adopted by the State Government. If, therefore, the State Government were to offer regular scales to these teachers, we do not find that the Union of India would have objected and resiled from its responsibility to meet with 90% of such expenditure. This would require one Page 49 of 63 rider by way of clarification. The intention of the Central Government is not to permit the State Governments to divert its responsibilities of providing sufficient number of teachers to the extent of sanctioned regular cadre strength as can be seen from a letter dated 15.11.2017 by the Ministry of Human Resource Development, Government of India written to Secretary, Education of all States and Union Territories, several major issues which were critical in planning for the Annual Work Plan and Budget exercise of SSA for the year 2018-19, were discussed and highlighted. In paragraph-VII of this letter under the heading "Teacher salary and deployment" it is stated as under:
"The Department has been emphasizing to the States during the PAB meetings that States should fill up the State vacancies first before filling up the posts under SSA. Teachers‟ salary, equivalent to vacant state cadre posts, was deducted in the past for Odisha and Chhattisgarh in 2014-15. Accordingly, it has been decided that, salary of teachers sanctioned under SSA to the tune of teacher vacancies in the State sector will be shifted to State and will not be funded under SSA."
47. Thus, the Union of India has conveyed to the State Governments that if the regular posts of Government teachers are vacant, to that extent the Central Government would not fund the SSA teachers. The Page 50 of 63 intention is clear. If the State Government has certain number of sanctioned posts for teachers, it is presumed that the Government has not only the requirement but also made budgetary provision for filling up such posts. If the State Government does not fill up such posts but continues to draw from the Central Government funds for paying SSA teachers, Union of India would not accept such a formula. To therefore, contend that by providing regular scales or regularising the services of these teachers, the State Government would have to carry huge financial burden is not correct. The apprehension repeatedly voiced in the affidavits that if the scheme were to be withdrawn or cancelled by the Central Government, the State Government would be left with a burden of sustaining these teachers, is also a matter of imagination. If the scheme in the most unlikely scenario is to be withdrawn, surely all sanctioned posts would be abolished and budgetary allocation withdrawn. In such unlikely scenario, there is nothing under the scheme or under the law which would require the Government to continue to sustain such teachers in the Government service. It is always open for the Government to sanction sufficient number of posts in regular pay scales as special SSA teachers, continuation on such posts would depend upon continuation of the scheme itself.
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48. Even otherwise neither the State Government nor the Central Government can cite insufficiency of funds in order to violate the fundamental right of free and compulsory education enshrined under Article 21 of the Constitution. Particularly, so far the State is concerned, as noted, sub-section (3) of Section 7 of the RTE Act provides that the Central Government shall provide to the State Governments as grants-in-aid of revenues, such percentage of expenditure as it may determine from time to time in consultation with the State Governments. As per sub-section (4) of Section 7 the Central Government can also make a presidential reference to the Finance Commission in terms of Article 280 to examine the need for additional resources to be provided to any State Government so that the State Government may provide its share of funds for carrying out the provisions of the Act. We also notice that sub-section (3) of Section 23 of the RTE Act provides that the salary and allowances payable to and the terms and conditions of service of teachers shall be such as may be prescribed. In exercise of rule making powers under the RTE Act, the Union of India has framed the Right of Children to Free and Compulsory Education Rules, 2010. Rule 20 of the said rules pertains to salary and allowances and conditions of service of teachers and reads as under: Page 52 of 63
"20. Salary and allowances and conditions of service of teachers.--(1) The Central Government or the appropriate Government or the local authority, as the case may be, shall notify terms and conditions of service and salary and allowances of teacher of schools owned and managed by them in order to create a professional and permanent cadre of teachers.
(2) In particular and without prejudice to sub-rule (1), the terms and conditions of service shall take into account the following, namely----
(a) accountability of teachers to the School Management Committee;
(b) provisions enabling long term stake of teachers in the teaching profession.
(3) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of teachers shall be at par for similar qualification, work and experience."
Under sub-rule (1) of Rule 20 thus the appropriate Government or the local authority has to notify terms and conditions of service and salary and allowances of teachers of schools owned and managed by them, "in order to create a professional and permanent cadre of teachers". Sub-rule (2) of Rule 20 further provides that in particular the terms and conditions of service shall take into account (a) accountability of teachers to the School Management Committee; and (b) provisions enabling long term stake of Page 53 of 63 teachers in teaching profession. Sub-rule (3) of Rule 20 further provides that the scales of pay and allowances and other conditions such as, medical facilities, pension and gratuity etc. of such teachers shall be at par for similar qualification, work and experience. Engaging teachers on purely ad-hoc and contractual basis at fixed remuneration which is very below the regular scales, destroys the very purpose of framing Rule 20 of the said rules. This rule in different ways manifests an intention on part of the rule making authority to ensure that fair and equitable service conditions are made available to these teachers so that a professional and permanent cadre of teachers is created who are accountable to the school management and have a long term stake in the teaching profession. It also provides for pay scales and other service conditions at par with other teachers having similar qualifications and work experience. By keeping these SSA teachers on contractual engagement for years together, paying them fix salary which may be unilaterally determined by the authorities, the Government is trampling upon every element of fair wages and service conditions provided in Rule 20 of the said Rules. There is thus a clear disconnect between the legislative policy and executive action.
49. Coming to the last of the Government‟s objection regarding qualification of the teachers, to begin with we are not inclined to go into Page 54 of 63 individual qualifications held by every teacher which of course would be a subject matter for the Government to examine. We only propose to clear certain legal issues. If we understand correctly the objection raised by the Government is that they do not possess TET pass certificate. The petitioners have pointed out that they have all cleared D.El.Ed. Examinations successfully and for which they have been granted certificates by the recognised institutions. The petitioners contend that on account of insufficient number of teachers and insufficient number of institutions to impart teachers‟ training to such unqualified teachers in the State, the NCTE had published notifications extending the time for completion of in-service teachers training and also provided that the D.El.Ed. Course would be equivalent to the TET course provided it is obtained within certain time period. All these aspects were examined by the Single Judge of this Court in case of Sri Snehangshu Das and others vrs. The State of Tripura and others in WP(C) No.89 of 2020 and connected petitions in a judgment dated 18.12.2020 in which it was observed as under:
"18. Similarly the objection of the petitioners not possessing requisite educational qualifications is also for two reasons not a valid objection. Firstly, the Government itself was the recruiting agency. The Government had prescribed minimum qualifications in the recruitment rules. These qualifications were published in the recruitment notification.Page 55 of 63
It is not the case of the respondents that any of the petitioners did not possess these qualifications. Several years later the Government cannot raise the legality about the recruitments on the ground that these petitioners did not possess the educational qualifications prescribed by NCTE. In any case, this objection on merits also is not sustainable. We have noticed that as per the Government the qualifications prescribed in the recruitment rules were amended in the year 2016 and 2019 to be in tune with NCTE regulations of 2014, the minimum requirement being a graduation or post graduation from recognized university with at least 50% marks in either of the two degrees and Bachelor of Education from National Council for Teacher‟s Education recognized institution. These amendments which were made in the year 2016 and 2019 obviously cannot apply to recruitments which were made in the year 2012. It is true that the NCTE notification of 2001 provided the minimum educational qualification of graduation with B.Ed. or equivalent for a teacher. However, as correctly pointed out by Mr. Somik Deb, under a notification dated 18.06.2012 the Government of India, looking to the serious shortage of trained teachers in the State had given exemption from such additional qualification for appointment of a teacher. This notification took into account the proposal of the Government of Tripura for relaxation of the requirement of minimum qualifications for appointment as teachers as provided under sub-section (2) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009. This relaxation was granted up to 31.03.2015 subject to certain conditions including the Page 56 of 63 condition that the State Government shall take all steps to increase the institutional capacity for preparing persons with qualifications to ensure that only qualified persons are appointed as teachers after 31.03.2015. This exemption was thereafter extended. By a further memorandum dated
19.08.2017 it was provided that those teachers who were already engaged shall also acquire the qualifications of a trained teacher as prescribed by NCTE within the stipulated time of 31.03.2019. Since there was a severe shortage of seats as compared to the aspirants, the existing teachers who may wish to have their qualifications regularized, the Government of India in the said notification also recognized certain online courses through which the qualifications could be obtained. Relevant portion of this notification reads as under:
"All in-service untrained teachers (Govt., Govt. Aided and Private Schools) shall acquire the minimum qualification required under the RTE Act, 2009 within the extended period till 31/03/2019 through the ODL Programme of NIOS except those who have already enrolled in IGNOU during July 2017 session."
19. In WP(C) No.87 of 2020 and connected petitions in case of Sri Raju Nama and others vrs. The State of Tripura and others reported in (2020) 1 TLR 725 this Court had occasion to examine the equivalence of Online Distance Learning Programmes through NIOS for the purpose of qualifications for trained teacher. The Court held and observed as under:
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"19. In the anticipation that the petitioners will acquire the minimum qualifications of D.El.Ed. certificate, they were allowed to undertake the T-TET course. They have duly completed the D.El.Ed certificate course. They must therefore be allowed to enjoy the fruits of their having cleared the T-TET examination also. The State Government must issue a necessary certificate in this respect. The objection of the State Government that the basic qualification of D.El.Ed. pass was obtained by the petitioners from an institute which offered the course over duration of 18 months instead of 24 months envisaged as per the Regulations, is overruled.
20. In the result, petitions are allowed. The respondents shall accept the petitioners‟ certificate of D.El.Ed. pass from NIOS (ODL programme) as valid for all purposes including for the purpose of undertaking TET examination. Necessary certificate of T-TET clearance would be issued to them if they have passed the examination. This shall be done within a period of 4 (four) weeks from today.
Pending application(s), if any, also stands disposed of."
Distance learning course offered by IGNOU stands on the same footing as one offered by NIOS. I am informed that all the petitioners have obtained the qualification through distance learning course offered by IGNOU/NIOS.
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This objection of the respondents also, therefore, is turned down."
50. There is yet another aspect of the matter. If as contended by the respondents, majority of these teachers are untrained and unqualified, the question is, what are they doing educating our young children. Should they not have been replaced by qualified trained teachers? Surely, a person cannot be continued as a teacher for several years though his not trained to teach. Lack of qualification is thus selectively sited, not for continuing the teachers‟ engagement but for not paying full wages.
51. Similar issues have come up for consideration before various High Courts. We would refer only to some of these judgments which are cited by the counsel for the petitioners. A Full Bench of Gauhati High Court in case of Kamrup District Siksha Sarathi (I) Association & others vrs. State of Assam & others in WP(C) No.5002 of 2012 in a decision dated 26.10.2017 considered the demand of Siksha Sarathis of the Government schools for a direction to the authorities to formulate a scheme for absorption on regular posts. The Court held and observed as under:
"42. Reverting back to the case of Siksha Sarathi, we find that notwithstanding their initial engagement for 11 months, their engagements have continued for more than a decade Page 59 of 63 now; as a matter of fact, their engagement is now in the second decade, which clearly indicates the necessity and utility of Siksha Sarathis as assistants to the teachers.
43. In the recent decision in the case of State of Assam Vs. Sri Upen Das , WA No.45/2014, decided on 08.06.2017, a Division Bench of this Court was examining claim of the respondents who were muster roll workers, work charged workers and casual workers to regularisation of service with consequential benefits, such as, pension etc.. Learned Single Judge had directed the State to consider regularisation of the services of the respondents in terms of Cabinet decision taken on 22.07.2005 by framing an appropriate policy/scheme. While setting aside the judgment of the learned Single Judge, the Division Bench noted that State Government had agreed not to terminate the muster roll, work charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement age except on disciplinary ground or on ground of criminal offence. The Division Bench also noted that the State Government had agreed to enlist such employees in health and accidental and death insurance schemes to be prepared in consultation with the State Cabinet. Appreciating the stand of the State, the Division Bench directed immediate implementation of the above measures; further directing the State to pay minimum pay scale to such categories of employees w.e.f. 01.08.2017. Relevant portion of the decision dated 08.06.2017 is extracted hereunder: -Page 60 of 63
"22. It is, however, heartening to learn that the State Government has agreed not to terminate the Muster Roll, Work Charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State Government to implement the measures without further delay. Besides this, we, in the light of decision of the Supreme Court in State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017."
44. Therefore, having regard to the grievance expressed by the petitioners and the discussions made above, we are of the view that it would meet the ends of justice if similar benefit as granted to the muster roll, work charged and similarly placed employees working since last more than 10 years (not in sanctioned posts) is extended to the Siksha Sarathis. Accordingly, we direct the State to consider framing a scheme for the Siksha Sarathis on the above lines, which decision shall be taken within a period of 6 weeks from today."
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52. A Division Bench of High Court of Calcutta in case of State of West Bengal & others vrs. Anirban Ghosh & others in MAT No.1221 of 2019 and connected appeal in a decision dated 03.09.2020 considered the request of part-time teachers of State Government for being paid remuneration in the regular scale of pay prescribed for the full-time regular teachers of the Government schools. After referring to Section 23 of the RTE Act, the Court gave certain directions for payment of salaries to such teachers equal to basic pay in the pay scale of the regular teachers working in the higher secondary schools.
53. We are, therefore, of the view that the petitioners must receive the remuneration in regular scale of pay assigned to the primary/upper primary Government teachers. The State Government also has a policy of initial appointment of a teacher on fixed pay basis for a period of 5 years. The same rule can be applied in the present case also. In case of all the petitioners thus from the date of the petitions or upon completion of 5 years of service whichever is later, they shall be placed in regular corresponding scales of pay for the Government teachers. However, this pay fixation would be for a notional purpose from the appropriate date till the date of this judgment, of course with Page 62 of 63 notional release of increments as per the rules. Actual difference in salary would be paid effective from the date of this judgment.
54. The petitioners would have a right to be regularised after 10 years of continuous and uninterrupted engagement from initial appointment. It would be up to the Government to consider them for regularisation either in existing vacant posts of Government teachers or to sanction new posts as SSA teachers by creating such cadre if so advised. It would be open for the Government to frame a scheme providing for further terms and conditions on which such regularisation shall be done. However, any such scheme shall contain a clause that the service upon completion of 5 years from initial engagement or the date of filing the petition whichever is later, (when as per this judgment the petitioners would notionally start receiving pay in regular scales) till date of regularisation, the services rendered by the petitioners shall count towards their pensionary benefits.
55. We are conscious of the legal issues concerning regular teachers in the Government schools which is a fall out of the Division Bench judgment of this Court in case of Tanmoy Nath and others vrs. State of Tripura and others reported in (2014) 2 TLR 731, where as per further orders passed by the Supreme Court, all those teachers who Page 63 of 63 were terminated on account of the judgment of the High Court, would have a right to compete for fresh selections with age relaxation granted to them up to 31.03.2023. We have, therefore, left for the Government to regularize these petitioners either against the existing posts or on new posts which may be sanctioned.
56. These directions shall be carried out within a period of six months from today.
57. As noted in WP(C) No.329 of 2015 petitioners espouse the cause of the class of teachers through the association. In any case, the nature of disputes and our consideration are for the entire cadre. This judgment, therefore, shall act as a judgment in rem and will apply to all similarly situated SSA teachers without any of them having to approach the Court separately.
58. Writ petitions are disposed of accordingly.
Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ Pulak